Drew S. Gunsolus

A police officer commenced a civil action alleging that the police association breached its duty of fair representation in relation to disciplinary charges under the Police Services Act.

The association brought a Rule 21 motion to dismiss the claim for lack of jurisdiction, arguing that the dispute arose from the employment relationship governed by a collective agreement.

The court applied the Weber framework and examined the essential character of the dispute, concluding that the allegations concerned the association’s representation duties within the collective bargaining regime.

Because the dispute required interpretation and application of the collective agreement and related statutory scheme, jurisdiction lay exclusively with a labour arbitrator.

The court therefore held it lacked jurisdiction to hear the action.

The accused applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging that the delay between the laying of charges for criminal negligence causing death and bodily harm and the scheduled trial date was unreasonable.

The court applied the framework from R. v. Morin and analyzed the length of delay, waiver, reasons for delay, and prejudice to the accused.

Much of the delay was attributed to inherent complexity, defence availability, and institutional factors, with a smaller portion attributable to the Crown.

The court found no clear prejudice to the accused and concluded the delay was not unreasonable in the circumstances of a complex case involving numerous witnesses and technical evidence.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding the legal limit under the Criminal Code.

The appeal argued that the Crown failed to establish that the accused understood the breath demand made by the arresting officer, a prerequisite for the admission of breath test evidence.

The court held that while evidence established that a demand was made and complied with, there was no evidence that the accused understood the nature of the demand.

Without evidence satisfying the informational component required for lawful breath demands, the statutory preconditions for admitting the breath certificate were not met.

The appeal was allowed, the conviction and sentence were set aside, and an acquittal was entered.

The plaintiffs invested $300,000 in an offshore investment program after being advised by the defendant, who represented the investment as secure and guaranteed to yield a 17.52% return.

The defendant failed to disclose that the investment scheme was under investigation by the Ontario Securities Commission and that he was receiving undisclosed commissions for referring investors.

The court found that the defendant had held himself out as a financial advisor and stood in a fiduciary relationship with the plaintiffs.

By recommending the investment, failing to disclose conflicts of interest, and concealing regulatory investigations, the defendant breached his fiduciary obligations.

The court awarded equitable compensation for the plaintiffs’ lost investment with pre‑judgment interest and held both the individual defendant and his corporation jointly and severally liable.

Following a direction from the Court of Appeal to reconsider liability for malicious prosecution, the court determined whether a municipality could be liable for initiating criminal proceedings against a former employee.

The court applied the four‑part test from Nelles v. Ontario and examined whether the municipality initiated the prosecution, lacked reasonable and probable grounds, acted with malice, and whether the proceedings terminated in favour of the plaintiff.

The court found the municipality withheld exculpatory information from police regarding missing municipal files and prior internal investigations, thereby undermining the independence of the police investigation and becoming the proximate cause of charges that resulted in an acquittal.

The court concluded the prosecution was pursued to justify the employee’s dismissal and shield the municipality from civil liability.

Liability for malicious prosecution was established, but damages were fixed at a nominal amount pursuant to agreement of counsel.

In a child protection proceeding, the parents brought a motion seeking full documentary disclosure from the Children’s Aid Society and the Office of the Children’s Lawyer.

Although the Society ultimately consented to the requested disclosure after the motion commenced, the court considered whether costs should be awarded against the Society.

The court held that while child protection agencies do not have immunity from costs awards, costs should only be ordered where the Society conducts itself unfairly in carrying out its statutory responsibilities.

The court found that the Society’s delayed and piecemeal disclosure required the parents to bring an unnecessary motion and risked delaying the trial in a case involving a child already in care for over a year.

Partial indemnity costs were therefore ordered against the Society.

The appellant appealed a sentence of 90 days intermittent custody imposed following convictions for driving with blood alcohol exceeding the legal limit and driving while suspended.

The appellant argued that the sentencing judge erred by overemphasizing deterrence and denunciation, failing to give adequate consideration to rehabilitation, and improperly rejecting a conditional sentence.

The court held that appellate intervention requires the sentence to be clearly unreasonable or demonstrably unfit and found that the sentencing judge properly considered all relevant principles and factors.

Given the appellant’s significant record for impaired driving and driving while suspended, the sentence fell within the appropriate range.

The appeal was therefore dismissed.

Following the dismissal of a motion by a proposed intervenor seeking to be added as a party to an unrelated civil action, the court addressed costs.

The court held that the proposed intervenor had no connection to the underlying action and that the motion raised no issue of public interest or bona fide legal concern.

Exercising its discretion under s. 131 of the Courts of Justice Act, the court determined that costs should be awarded to the defendants despite their representation by Crown counsel.

While acknowledging the unsuccessful party’s limited financial means, the court emphasized that litigants, including incarcerated individuals, remain responsible for the costs consequences of misguided or unnecessary procedural steps.

Costs of $500 inclusive of disbursements and taxes were awarded.

The proposed intervenor, an inmate, brought a motion for leave to intervene as an added plaintiff in an action commenced by another inmate against his parole officers.

The proposed intervenor argued that his own separate action against different parole officers involved similar claims of misfeasance in public office and negligence, and that a negative outcome in the plaintiff's case could adversely affect his own.

The court dismissed the motion, finding that the proposed intervenor failed to meet the test under Rule 13.01.

The disputes were purely private, involved different factual matrices and defendants, and the proposed intervenor's involvement would only complicate the proceedings.

An estate trustee sought the court’s advice and direction regarding the distribution of a lapsed residuary gift where a named beneficiary predeceased the testator.

The issue was whether the 25% share should pass on intestacy to distant next of kin identified through genealogical research or instead be redistributed among the surviving named residuary beneficiaries.

Applying principles of will interpretation, including the “armchair rule” and the presumption favouring testacy over intestacy, the court examined the testator’s relationships and intentions at the time the will was made.

The evidence demonstrated that the testator had meaningful relationships only with the named beneficiaries and believed she had no living relatives.

The court found a contrary intention in the will and ordered the lapsed share to be distributed proportionately among the surviving residuary beneficiaries.

The defendant brought a motion to set aside service and stay an Ontario action arising from a trip and fall accident that occurred in a retail store in New York State.

The court considered whether Ontario had jurisdiction over the foreign defendant using the real and substantial connection test and whether Ontario should decline jurisdiction under the doctrine of forum non conveniens.

Applying the framework from Van Breda, the court found significant connections between the plaintiffs’ claim and Ontario, including residency, damages, and treatment occurring in the province, as well as sufficient connection between Ontario and the defendant due to its participation in an international retail organization and cross‑border advertising through its website.

The court also concluded that Ontario remained the appropriate forum because most witnesses and evidence were located in Ontario and proceeding there would not be unfair to the defendant.

The motion to stay the proceedings was dismissed.

Costs decision following a family law motion to change regarding a child’s school placement.

The moving party sought costs after the dispute was ultimately resolved through a consent order following the involvement of a court‑directed parenting facilitator.

The court applied Rule 24 of the Family Law Rules, recognizing that both parties achieved partial success but finding that the motion to change was a necessary catalyst to advance resolution of the dispute.

The court also considered the reasonableness of the parties’ conduct and the limited complexity of the matter.

Costs were awarded to the moving party in a reduced amount.